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EEOC Issues Updated COVID-19 Technical Guidance

By: Christopher R. Henderson, Esq.

The Equal Employment Opportunity Commission (EEOC) recently released an update to its technical guidance, adding a new section clarifying under what circumstances COVID-19 could be considered a disability under the Americans with Disabilities Act and the Rehabilitation Act, which could then require an employer to provide a “reasonable accommodation” absent undue hardship.

The Department of Justice and Department of Health and Human Services had previously issued guidance on “long-haul” COVID as a disability. The new EEOC guidance focuses more broadly on when COVID may meet the legal definition of disability in an employment context. Here are a few key highlights: 

While a mild case of COVID-19, may not constitute a “disability”, if it results in a condition that impairs one or more major life activities, then an employee may have a disability under the ADA  or Rehabilitation Act. The guidance provides some examples:

  • An employee diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, may be substantially limited concentrating, and/or thinking.
  • An employee diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, may be substantially limited in respiratory function, and other activities involving exertion, such as walking.
  • An employee who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months may be substantially limited in cardiovascular function and circulatory function.

The guidance also addresses potential violations of the ADA where the employer “relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

It is important for employers to engage in an individualized assessment of an employee to determine if they have a disability recognized by applicable law, and if so, what reasonable accommodation(s) can be provided through the interactive process.